Stifled HDRC Member Quits – March 28, 2011

CITY HALL – Citing unfair treatment, alleged violations of the Brown Act and rudeness by the chair of the Planning Commission, a member of the Historic & Design Review Commission (HDRC) has resigned.

The March 9 resignation came about in the aftermath of the Feb. 23 Planning Commission meeting. On the agenda that night was the proposed demolition of the Church of Jesus Christ of Latter Day Saints on A Street. The LDS Church wishes to demolish the building due to what it says are excessive costs of mold removal. It would then clear and sell the lot. The HDRC opposed the demolition, and wished for the structure to be designated as historic.

But the LDS said that as a religious organization, it is exempt from local historic and aesthetic design review. City Attorney Nancy Diamond researched the law and agreed that the City cannot prevent demolition on those grounds.

Now-former HDRC member Marc Delany disagrees with that opinion and opposes demolition. He attempted to address the Planco on the topic Feb. 23 but was told he couldn’t by Chair Robert Flint.

Flint cited an unwritten but long-observed protocol which deems it inappropriate for members of the City’s citizen advisory committees and commissions to address other such bodies as private citizens. “That’s just the longstanding way it’s been done in Arcata,” he said.

Delany spoke anyway defending his right to do so and objecting to the LDS decision. The ensuing discussion between City staff and planning commissioners commingled the LDS issue with that of Delany’s right to testify before the Planco.

Staff supported Flint’s decision on grounds of “finality,” stating that individuals on committees and commissions ought to express themselves only through those bodies and not continue to provide testimony once decisions are taken.

The Planco unanimously voted to allow the LDS Church to apply for a demolition permit at an upcoming meeting.

In his resignation letter, Delany said the Planco’s actions raise “serious questions of when and how the Planning Commission decided the issue, whether all required public testimony was heard before this occurred, whether the public process necessary under the law was followed and what steps need to be taken to rectify the problems created by the chair’s leadership of the planning commission.”

Delany said that during the first break in the meeting, he approached Flint at the dais and told him, “that’s the most egregious thing I’ve ever seen occur in city government in my life,” shook his hand and left City Hall.

Delany also objected to Flint’s allowing HDRC member Jeanette Heartwood to briefly speak. She spoke to ensure that the record reflected that hers was a dissenting vote on the HDRC – she disagreed that the LDS church should be designated historic.

Later in the meeting, Commissioner Judith Mayer deemed the incident “unfortunate,” and said that claification and proper training would be helpful.

Flint stated that Delany had been “rude.” “I feel like I was abused by that guy,” he said.

Flint said he had had the no-speak policy spelled out by former Community Development Director Ken Curtis years ago. “When you join a commission, you give up some of your rights as a public citizen,” Flint said. “This is the way we do things here in the city.”

Current Community Development Director Larry Oetker said the polcy had inspired “heated discussions” even among City staff in closed meetings. The point of the policy, he said, is to ensure clean process free from untoward pressures by committeemembers participating as independent agents.

Commissioner Paul Hagen agreed, calling the policy “wise.”

Delany contends that the Planning Commission violated the Ralph M. Brown Act “at least” three times and possibly more. The Brown Act was adopted in 1953 to ensure open public process and protect citizen participation.

He also contests the city attorney’s opinion affirming the LDS Church’s exemption from local design review. “That land is not theirs to sell,” Delany said. “The whole thing is mysterious.”

Delany’s resignation set off a flurry of correspondence among City officials and staff, again mixing the LDS issue with Delany’s right to address the Planco about it (see below).

Mayor Susan Ornelas said she didn’t think the Brown Act was applicable in this instance. However, the council does plan to address and possibly formalize the unwritten rule during an upcoming study session on protocol.

In 1999, former Planning Commissioner Dwain Goforth was dismissed from the Planning Commission for speaking to the City Council on a matter the Planco was considering.

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Note: The following is a series of correspondences between Marc Delany and others following his resignation. – Ed.

Mike Mullen

Planner/Liaison Historic & Design Review Commission

City of Arcata

736 F Street

Arcata California 95521

707 822 5951

March 9, 2011

Dear Mike Mullen,

This is official notice of my resignation from The Historic & Design Review Commission (HDRC). I will appreciate it if you would make the proper notifications as needed. Attached is a letter for the city council, the HDRC, and planning staff.

It was a pleasure working with you, and I am sorry that your role in my attending the February 22nd Planning Commission public hearing was called to question. I have found your work to be very helpful, and very professional.

Thanks again

Sincerely,

Marc Delany

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Members of the Public

Arcata City Council

Honorable members of the Historic & Design Review Commission

City of Arcata Planning Staff

Honorable Members of the Arcata Community,

With a great deal of regret I have tendered my resignation from The Historic & Design Review Commission. This step was necessitated by a complete failure of process and the tepid and inadequate response to the complaints of the actions taken by members of the Arcata City Planning Commission on February 22nd 2011. At the public hearing, the planning commission’s chair declined to take public testimony in violation of the Brown Act. Members of both the Historic & Design Review Commission, and the Landmark Committee were prevented from giving testimony on the agenda item for the demolition of the LDS chapel. This ruling by the chair was unevenly applied to members of the commission that asked to testify. This ruling was further extended to citizens (always allowed to testify), based solely on the chair’s understanding of an Arcata City policy allegedly ‘prohibiting members of commissions or committees from testifying’. No such policy exists, if one did, it would conflict directly with several California laws including the Brown Act. Penalties for these violations, if substantiated, include invalidation, and criminal/and/or civil penalties against the chair.

In subsequent discussion that evening, on the off the cuff ruling of the chair, a question of proper training was raised by Judith Mayer. This suggestion was tabled by the chair as unnecessary. Planning Commissioner Mayer bravely made the suggestion against the general consensus of the commission and staff. Staff cited recent articles pertaining (attached), along with the Brown Act sections pertaining (attached). In response to this complaint, informally, the reply from the city was 1) no such policy exists and 2) the issue was a personal matter between one commissioner and the chair.

The issue has drastically affected the process Arcata’s Community relies on, a lawful procedure concerning demolition of a community asset determined by the commissions and committees charged with the responsibility to review and report, rendering that process pointless.

Review of the video record should raise serious questions of when and how the planning commission decided the issue, whether all required public testimony was heard before this occurred, whether the public process necessary under the law was followed and what steps need to be taken to rectify the problems created by the chair’s leadership of the planning commission.

I am asking for review of the issues now before you, and the future roles of the Historic & Design Review Commission and other committees and commissions that are in place to assure a fair and open process, in light of the actions of the planning chair, planning commission and planning process for Arcata. There is a serious problem evident.

“The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control of the instruments they have created”. – Brown Act – legislative intent.

It will be difficult to get people to volunteer substantial commitments of time if they are there only to fulfill predetermined agendas in an arbitrary and capricious process.

Deepest regrets,

Marc Delany

***

Hi Dave Loya, Madam Mayor,

Concerns:

Is an EIR scheduled for the LDS site now? If not I’d appreciate an explanation why not. Possibly a prudent administrator would take a second look at N. Diamonds determination of CA 37361… it applies when there is a profit at stake. The LDS agents have twice testified that the opposite is true, they would make more money retaining the building. I’d suggest outside counsel. Subsequent law determined an applicant must necessarily follow local process (Marketing). Both the Landmark Committee and the HDRC already determined and recommended the buildings for local nomination, by vast majority, negating RLUIPA (pulled out of a hat when it appeared the mold story was rotten). The truth is, (in my opinion) someone in control predetermined to demo this asset for the LDS applicant, no matter what.The HDRC had other concerns about the marketing required of any building for demo under the LUC, erased by a manipulated process from the public record. The history and city record is disturbing.

Secondly, the resource they plan on selling, they do not own… the land. The land was a former school partiality donated for a purpose of church. County records show no taxes paid on the property until about 10 years ago, when the property became commercial (see CA 37361 concerning property status also, a weaker argument, were profit at stake). It is unclear in the record I could easily find, what the conditions imposed by the city were, when the land was transferred, and which lots were sold, which donated. Larry said they’d look into it, I doubt that happened now. Should they sell and then the record emerge, it will be a problem for those currently managing our collective assets.

Larry, and every building official in the state would agree, the building has more value standing. The LDS agents intend to clear the site and sell a city asset, to recover some expense. Should Danco be involved in any aspect of demolition, or purchase of the lots, a crime will have occurred, given PC Chair non-recusals, and improper actions to forward this bizarre development scheme, one that cannot possible benefit the city (or the LDS, on paper).

I understand the city manager stated “No Brown Act violations occurred Feb 22nd PC Meeting. I must offer once again, that there were at least two, maybe four self evident, clear violations, Myself and Kathleen Stanton were prohibited by the PC chair (seconded by Paul Hagan) from speaking based on a misunderstanding of an unwritten law contravened by the Brown Acts central tenets and 5 USC (from memory, sorry) under APA that “what is not written does not exist” with respect to such a contention. Second, a commissioner was allow to speak, to state her opposition! Seconds later…. What? The hand waving by Larry in explanation was extraordinary, given I was to testify by the public record.

I find it more than a little disturbing to see that after I left, Larry cited in support of the PC Chair’s action a report Dec 2010 Western Cities that supported MY view, and that Judith Mayer suggestion for train be dismissed (twice) by the PC chair. He did it again at the City Council PC annual report in response to Councilman Mark Wheetley. Nice man, (PC Chair) but so wrong he will get the city into trouble with his cowboy process, himself too. Please know the Brown Act goes against individuals, this may unravel a volunteer board in Arcata. When I asked the City Attorney to intervene, she stated “He’s running the meeting”. It is unfair to throw volunteers to the wolves. The City staff then reinforced his incorrect actions, very bad.

Given that my initial efforts are to help Arcata, I find myself at the end of informal discussion without any resolution or concession, rather the reverse. Requests for correction ignored. The options that remain to me after this are drastic, and will be largely outside of our control.

I asked for three simple things that might keep the city from inevitable litigation and outside investigation from the county and state.

1) PC Chair apologises, steps down,

2) 360 days of open marketing of school site (its going to take longer than this to demo, no?)

3) Training given to all on the Brown Act from outside council,protocol manual explicit on freedom of speech per CA Law.

I am not an attorney, I did serve under three SF Mayor’s, (Mayor’s Office of Housing) where I built 9000 units, under dozens of scenarios….and many other liaison committees of local government in AZ, including General Law cities. I know my options. My State contacts at SHPO, and attorneys familiar with planning commission practice agree with my positions above. This is about to leave my hands. It is so regrettable.

No response will necessitate actions for outside intervention to rectify failed city processes. I hope you can pursued the City Manager, and City Counsel to take immediate action to vastly improve the PC public process, and review the predetermined demolition of the LDS site, for reasons I still cannot fathom. He seems predetermined to demo, why have commissions and council review if all the info is concealed from them and the public?

Yes on training?

Yes on EIR?

360 days?

Judith Mayer for PC Chair?

Very small price to pay, given what occurred, and the potential future actions. I have about 10 days left for some response. PLEASE get outside legal counsel now. A commissioner steps down for reason and no one cares?

I am asking that this correspondence, and the other correspondence given to the PC, and HDRC, be submitted to the next City Council session for discussion and action. Action will proceed if this is not discussed.

Thank you,

Marc

cc Madam Mayor, N. Diamond

BCC List

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Dear Madam Mayor,

I hope you received and fully understand the info, just sent (long letter) please ask any question of me. I would have less problem if the LDS applicant simply signed back the asset (land) and removed the building… but adaptive reuse and a potential set of interested people have testified in public that they want the site, have toured the site at the invitation of the LDS. They have the funds. Please look into the history of the project, its a doosy…. Also, somehow, I requested and explanation but none were forthcoming, the LDS site is already zoned residential, although base zoning was a school…. ask Joe Mateer…

Regards,

Marc Delany

***

Marc,

It is my understanding that the City does not have a written policy about lessor legislative bodies addressing a superior body, the City only has a written policy for superior bodies addressing lessor bodies. (A highly discouraged practice) [This is covered in the Brown Act. I could share with you discussion about this topic, but it is covered in the Brown act under page 16 http://www.cacities.org/openandpublic* ] There have been previous incidences of people serving on a Commission where they did not agree with the decision of the body, and they wanted to present information to the superior body. This has always been frowned upon, as the person’s free speech rights were upheld when they served within the body of the Commission (in this case when you discussed the situation at the Design Review meeting). [I questioned the policy at the time. No one could point to it, as it conflicts directly with the Brown Act and other 1st amendment law, I don’t think you will find it. I did find examples of individuals testifying before you! both as a committee/commission member and as the public. It has to do with inappropriate influence of a subordinate body, otherwise, what would be the harm? In any case it seems common practice actually. Would you want to see an example?]

I discussed this situation with the City manager, and the Director of Development, and we all agreed the City should put a formal policy in place outlining that if a person serves on a Commission in the City, their voice is heard during the Commission deliberations, and they should not address further deliberations as a private citizen. If said person wants to address the situation as a private citizen, then they need to claim so early in the process, and sit out from the deliberations held in the Commission meetings where they serve.[I agree. It should conform to the Brown Act provisions covering this, and the 1st amendment. The City Manager and Development Director are parties to this complaint, so we may have a different view.]

So – this situation has inspired the City to more clearly define the roles and positions of people serving on Commissions. Thank you for that.

As far as Brown Act issues goes, I really don’t think it applies here. We have two people, you and Robert Flint, who both got emotional and a bit heated about a subject of development, and the right way to communicate information, in the City. This is understandable, as people are human and can get emotional. [I’m not sure you watched the tape then. I said very little. I hope you do watch it. Please note the HDRC commissioner that voted to allow the demo permits speaks 1st, then when I approach the podium there is a lot of discussion of the propriety.] Of course we all try to be professional, but as I said, we are human and have our emotions. Certainly, no one was trying to make decisions outside of the public forum, or intending in any way to thwart the public process. We had emotional humans, not a legal threat to the Brown Act. I hope you can see that. [Not at all actually. Is that what you see after viewing the record? There seems a clear pattern of abuse in this decision. I’m afraid I will better serve the city off the commission, than on it, if you have watched this record in full and come to this conclusion. If you have not watched it, I understand you position entirely.]

While I know you really wanted to be heard – the process we are outlining makes sense, and gives an equal voice to all. I hope this helps you understand the City’s point of view. [I’m afraid I can not be of assistance to Arcata as a commissioner if that is your decison. I appreciate your involvement though, thank you for the review.]

The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of: (1) another body of the local agency and (2) a legislative body of another local agency.7 Again, the majority cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their local agency’s subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission.

Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body.

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Dear Madam Mayor,

Much as I admire you, you are misinformed. I believe now you know it was not “two emotional men”, as off camera, Kathleen Stanton and perhaps others were discouraged from speaking. A HDRC commissioner was allowed to testify, just not me. Or is certain speech OK, other not? Apparently.

It is NOT the role of a commissioner, or a committee person, to represent their own views, exercising their free speech, in the public service. Of course no one gives that up, but they can do both, in most cases. My 30 years of government training describes commissioners as public servants, expressing the view of the law, the code, and the community, suppressing conflicting personal opinion when acting as commissioner. In your view, there would be no oversight at all, no whisleblowers, no citizen control… all dissenters would be assigned committees…..

We are alarmed by your view expressed here. I see you find Robert Flint’s behavior, which went so far as to violate even our community’s Rosenberg’s rules of order with his personal castigation as acceptable. As Planning Chair, you feel he should and has the right (and responsibility) to express his personal opinions fully during deliberation, act in his self interests and control a public hearing to his personal ends… That’s what your response to me, in saying “as the person’s free speech rights were upheld when they served within the body of the Commission” means. This is incorrect, unlawful, and you must know it violates the law. That is why the Brown act allows me as commissioner to speak at a superior commission as a commissioner or citizen.

I suspect you were misinformed initially. That should be evidence enough. The community decided to preserve the LDS site, for the past 10 years. The building is fine. There are offers unaccepted. If you feel that was communicated to the public in the Feb 22nd meeting then something is wrong.

I will take all necessary actions to ensure this policy is not codified in Arcata, and the underlying problems resolved, and working with SHPO, preserve the site. I think the LDS was better off with my initial offer, to follow our legal process under the LUC and market the building for 360 days… all buildings demoed in arcata must do that, they did not. Special consideration? No EIR? Who decided that? Why have a HDRC commission, and other committees?

Hope they own the land, if you allow it sold.

I counted on you as an ally, for nought.

Regrets again

Marc

***

March 21, 2011

Dear Folks,

Regarding the requested City Council appeal of the Feb 22nd PC motion.

I contact attorneys representing the Western Office of the National Trust for Historic Preservation, through SHPO, for an opinion…. They concurred.

Our LUC voids the economic hardship argument (old English law), that if the owner is responsible for the condition, that exemption is void; and with regards to 37361, if only a loss is contemplated, ca 37361 cannot be applied.

Please add these 2 additional reasons to requests full city council review of the motion passed that night.